"In my view, the example listed in regulation 8C ('a change from full-time to part-time work') does not place a limit on the content of the 'employment arrangement'. The term 'employment arrangement' in regulation 8C is not expressed to be limited by the example given. Even if this were so, a change from full-time to part-time work could also be characterised as a change in the employment contract, with the result that other changes to the employment contract would also be included in a change in the employment arrangements. In this case, a change to the hourly rate of pay, as evidenced by the payslips attached to the ARD and the Reply, and as specified in the Employment Agreement referred to below, also forms a change to the employment contract and hence the employment arrangements."

1. Ms Firth states that there was no change to her duties, and she was not given any additional responsibilities, once she had completed 500 hours of work for the respondent. There is no evidence from any officer or employee of the respondent of Ms Firth having a change of duties or added responsibilities or a change in the level of her supervision once her position was re-classified from Specialised Dementia Carer New Entrant to Specialised Dementia Carer Grade One.
2. The letter to Ms Firth from the respondent dated 3 March which contains an offer of employment states that Ms Firth is to be employed in accordance with an employment contract attached to that letter and the HammondCare Residential Care and HammondCare At Home Enterprise Agreement 2018. However, there is no copy of that Enterprise Agreement in the material before the Commission. That Enterprise Agreement might include tasks indicative of a certain level or classification of employment, which might assist in determining if there was a change of an ongoing nature to the employment arrangement when Ms Firth was re-classified from Specialised Dementia Carer New Entrant to Specialised Dementia Carer Grade One.
3. That there was no change in the duties, responsibilities or supervision of Ms Firth upon being re-classified from Specialised Dementia Carer New Entrant to Specialised Dementia Carer Grade One tends to support the contention that there was no actual change of an ongoing nature to the employment arrangement. However, in the absence of any definition of 'employment arrangement' in the 2016 Regulation, I agree with the broad approach taken in Cain to the application of the 'employment arrangement' between a worker and employer.
4. There was a change of an ongoing nature to the employment arrangement when Ms Firth had completed 500 hours of her employment. Once that milestone was reached, she became eligible for an increase in her hourly rate of pay. That was a change in the arrangement between Ms Firth and the respondent which was ongoing because Ms Firth was now to receive a higher hourly rate of pay in a new classification of employment.
5. I do not accept the submission made on behalf of Ms Firth that there was not a financially material change to her earnings upon being re-classified from Specialised Dementia Carer New Entrant to Specialised Dementia Carer Grade One. The increase in her rate from $21.11 per hour to $22.85 per hour was of substantial import because this was increase of about 8.25%.
6. Ms Firth's payslip for the fortnight ending 9 August 2020 records her earnings to be $2,900.85, which included additional allowances for working on Saturday and Sunday, and on afternoon and night shifts. This pay period provided earnings of almost $500 per week more than what she had previously received while working for the respondent, except for the fortnight ending 19 April 2020 when she earned $2,643.37. That is consistent with an expectation that her weekly or fortnightly earnings would increase with a corresponding increase in her hourly rate of pay. It was a material change to her earnings.
7. However, for reasons which have not been disclosed by Ms Firth, her weekly earnings decreased from 9 August 2020 until the date of her injury. Her pay slips from 26 July 2020 until the date of her injury record her taking some annual leave and sick leave. Ms Firth's pay slips record that by 18 August 2020 she was taking unpaid sick leave, presumably because she had exhausted her paid sick leave entitlements.
8. Ms Firth submits that the anomalous consequence of fluctuating earnings should be avoided when applying regulation 8C. However, regulation 8C is based upon there being change of an ongoing nature to an employment arrangement which results in a financially material change to the earnings of a worker. If that scenario is established (and in my view that has occurred in this dispute) then it becomes necessary to calculate the earnings for the relevant period following that change in the employment arrangement up until the time of an injury.
9. As I have already observed, the usual expectation is that the worker can expect an increase in weekly earnings. This was the argument which was pursued with success in Cain. Unfortunately, that did not occur for Ms Firth during the 14 weeks or so that she worked from the time of her re-classification and increase in her hourly rate of pay until the date of her injury, and hence she is in the unusual situation where her PIAWE is less when calculated from 29 June 2020 than if it were calculated from the commencement of her employment on 9 March 2020.
10. I consider Ms Firth's reference and reliance upon the decision in Wake to be misplaced. Firstly, in Wake there was a period during which the worker only received income from the employer by way of half pay for long service leave and Member Wright formed the view that this should not be regarded as 'earnings' and not be included in the calculation of PIAWE. In this dispute Ms Firth has received at least some earnings for every week that she worked with the respondent.
11. Secondly, the comparison made by Ms Firth to a casual employee which is referred to in Wake [at 47] does not apply in her situation because Member Wright was referring to weeks when a casual employee would not work at all, and the Member considered those weeks should not be counted at all when calculating PIAWE. If there were weeks when Ms Firth did not work at all for the respondent then it is arguable, based upon the reasons set out in Wake, that those weeks should be counted. However, as I have already noted, Ms Firth did work every week for the respondent and she also provides no explanation as to reasons for taking annual leave, sick leave and then unpaid sick leave from 26 July 2020 until the date of her injury.
12. I can only reiterate that the starting point for a determination of this dispute is whether there was a change of an ongoing nature to the employment arrangement between Ms Firth and the respondent. There was such a change and therefore earnings are calculated for the relevant period following that change in the employment arrangement up until the time of an injury.
13. Ms Firth has only made a calculation of her average earnings from 9 March 2020 to 6 October 2020. She has not made a separate calculation for the period from 29 June 2020 to 6 October 2020 to challenge the calculation made for this period by the respondent.
14. There are also errors in the list of earnings set out in Ms Firth's written submissions during this period. The earnings for the fortnight ending 20 September 2020 should be $1,396.63, and not $1,936.63, and the earnings for the last pay period should be $160.66 and not $693.27.
15. I have made my own calculation for the period from 29 June 2020 to 6 October 2020, and that calculation comes within a few dollars of the calculation made by the respondent for this period of $809.61. I therefore accept the calculation made by the respondent for the relevant period of $809.61. This is in the absence of any alternate and accurate calculation made for this period by Ms Firth.
16. I find that, pursuant to regulation 8C, Ms Firth's re-classification from Specialised Dementia Carer New Entrant to Specialised Dementia Carer Grade One on 29 June 2020, and the corresponding increase in her hourly rate due to that re-classification, was a change of an ongoing nature to the employment arrangement between Ms Firth and the respondent, resulting in a financially material change to the earnings of Ms Firth. Pursuant to regulation 8C (2), the relevant earning period is from 29 June 2020 to 6 October 2020.
17. Ms Firth's PIAWE for the purposes of calculating her entitlement to weekly payments of compensation are $809.61.